Thursday, 31 May 2018

For FATA residents the good news may be short lived, Marvi Sirmed

After
the passage of the 31st Constitutional Amendment from both the houses of the
Parliament as well as by the provincial Assembly of Khyber Pakhtunkhwa, the
merger of FATA with Khyber Pakhtunkhwa awaited just the assent of the President
of Pakistan. On Monday, the President did put his signatures on a key piece of
legislation, but it wasn’t the 31st Constitutional Amendment Act. Instead, the
President signed a questionable FATA Interim Governance Regulation of 2018.

The
draft of the Regulation, a copy of which is available with Daily Times, seems
to be old wine in a new bottle. Differences in the draft from the draconian
Frontier Crimes Regulations (FCR) it stands to replace are conspicuous by their
absence. Infact, in some places, the Regulation puts the FCR to shame with the
kind of draconian measures proposed in it.

The
15-page document starts with a statement of objective, which is ‘to provide for
an interim system of administration of justice, maintenance of peace and good
governance in the Federally Administered Tribal Areas and repeal of the
Frontier Crimes Regulation, 1901’. This good intention is very soon lost as the
text enters a very familiar, and a very dark territory.

The
Regulation converts the office of the Political Agent, that Tzar of FATA, into
that of the Deputy Commissioner. The Additional Political Agent becomes the
Additional Deputy Commissioner, and the Assistant Political Agent gets renamed
as the Assistant Commissioner.

The
tribal agencies get replaced by tribal districts and the frontier regions are
made sub-divisions.

The
Regulation continues to maintain the institution of the jirga as the Council of
Elders and as the Qaumi Jirga, just like FCR. Also, like FCR, too much
discretion has been put at the disposal of the Deputy Commissioner and the
Assistant Commissioner (who would also act as a judge in criminal cases, when
designated by the Governor).

Another
draconian aspect of the Regulation is the precedence it gives to the so-called
‘rewaj’ or local customs, to be determined by the Council of Elders. If history
is to bear witness, it is clear that such customs have almost always worked
against the interests of women and the poor. Whatever respite women might have
anticipated in the wake of the passage of the 31st Constitutional Amendment,
has been instantly evaporated after the signing of the Regulation.

Another
worrying provision of the Regulation entails the negation of any jurisdiction
of any civil court of the country to call in question anything being done in
the region. This also goes against the spirit of the merger, whereby the
judicial and law enforcement mechanism has to extend to FATA immediately.

The
requirement of time till such an extension may practically be possible owing to
the establishment of the required infrastructure is understandable, but this
kind of absolute blackout will stop the momentum of transition, if the state
has chalked out any roadmap to follow.

The
extension of the High Court and the Supreme Court jurisdiction, or even
provision for the right to appeal to the higher courts, is nowhere to be found
in the Regulation. In fact, the two-page long Supreme Court and High Court
(Extension of Jurisdiction to Federally Administered Tribal Areas) Act 2018
does not mandate any state authority to specify any roadmap for the extension
of jurisdiction. Instead, under its provisions, the judiciary cannot extend its
powers and establish its structures until the government notifies the higher
judiciary to do so, that too, in selected areas from time to time, not in the
entire region merged with Khyber Pakhtunkhwa.

Another
ridiculous and discriminatory provision of the Regulation entails prohibition
of establishment of new hamlets, village-habitations, towers or walled
enclosures on the frontiers of the country, without the prior permission of the
Deputy Commissioner. The Governor has the power to order relocation of villages
and settlements situated in close proximity of the border.

The
President has signed the Regulation under Article 247 of the Constitution
which, he must be fully aware, stands repealed by both the Houses of the
Parliament and the Provincial Assembly of Khyber Pakhtunkhwa with 2/3rd
majority. Technically, the repeal will not take effect until the assent of the
President, who has ensured that he will sign the 31st Constitutional Amendment
Bill after the Regulation.

Speaking
to Daily Times, an official in Ministry of Law and Justice said that the PMLN
government had probably enacted the Regulation ‘in good faith’ to prevent a
governance vacuum in the region. However, the government could have proceeded
with the Regulation after debating it in the elected legislative houses. This
way, it could have avoided the vacuum while taking elected representatives of
the Pakistani people on board its proposals for the interim setup.

The
timing of these developments is especially curious since the dissolution of
federal and provincial legislatures is just four days away, and the provincial
assembly of Khyber Pakhtunkhwa has already been prorogued, while the National
Assembly has adjourned its sitting on Monday, with its prorogation date
probably just 48 hours away.

Commenting
on the matter, Afrasiyab Khattak, a senior leader of the Awami National Party,
said that it was unfortunate that the government did not deem it necessary to
discuss the Regulation with opposition parties or debate it in the Parliament.
He said the Regulation was FCR reincarnated, and it had the bureaucracy’s
imprints all over the document.

Farhatullah
Babar, a senior leader of Pakistan Peoples Party, agreed and said that
bureaucrats had drafted the Regulation ‘in the darkness of the night without
discussion and debate’. He said the draft regulation was kept secret from
everyone, adding that those who managed to secure its copies did so through
informal channels.

“On
the one hand, the president is correctly divested of all executive and
legislative powers with respect to FATA, and on the other, the executive has
itself assumed powers to legislate the interim regulation,” Babar lamented, as
he pointed out the contradiction in the matter.

He
said that the political parties and the civil society should demand that the
interim regulation be placed before the Parliament for discussion before its
approval. But if the government does not table the Regulation before the House
for debate in the next two days, this won’t be possible until the new Assembly
is elected on July 25.

Further,
Babar emphasised that being an extraordinary legislation like military courts,
the Regulation should have a sunset clause in it. “If it is promulgated in its
present form, we should take it to the Supreme Court on the touchstone of violations
of fundamental rights,” he said, adding that since Article 247 had been struck
down by the Parliament, the Regulation could be easily challenged before the
SC. “A rigorous judicial oversight and heated parliamentary debate will put
some fear in bureaucracy and blunt its sharp edges”, he added.

The
Regulation is also significant in the backdrop of the summer offensive in
Afghanistan as announced by the Taliban. The inability to extend the
jurisdiction of law enforcement machinery as well as of the judiciary will go
to the advantage of militants who have already intensified their activities in
areas within Waziristan and other ‘tribal districts’. These militants have not
only increased targeted killings of civilians but also the attacks on the armed
forces of Pakistan.

About Me

Dr Shabir Choudhry has done extensive research on the issue of Kashmir and Indo Pakistan relations. He passed BA Honours in Politics and History, and Mphil in International Relations (title of the thesis, ‘Kashmir and Partition of India’); and title of his PhD thesis is ‘Kashmir- An issue of a nation not a dispute of a land’.

Apart from this Dr Shabir Choudhry passed Post Graduates Certificates in Education, and NVQ Assessor’s qualifications; and taught English in London.

Political Achievements

Founder member of JKLF (Jammu Kashmir Liberation Front established in 1977) and got elected as a Press Secretary in 1984.

Became its Secretary General in 1985, and resigned from this post in 1996.

Got elected President of JKLF and Europe in May 1999, and decided not to contest in elections of July 2001.

Said good - bye to the JKLF as it is in many groups and is largely seen as advancing a Pakistani agenda on Kashmir dispute, and set up a new party Kashmir National Party in May 2008.

.

At present, he is:

·Spokesman Kashmir National Party and Director Diplomatic Committee;

·Spokesman for International KashmirAlliance;

·Founder member and Director Institute of Kashmir Affairs;

Previously

·A founder Member and Trustee/ Director of London based registered charity, Kashmir Foundation International and resigned from this position in August 2001.

·Regularly take part in the Sessions of the UN Human Rights (Commission) now Council in Geneva; and address various conferences and seminars to oppose violence and highlight the Kashmir cause.

·Participated in a Round Table Conference on Kashmir, organised by Socialist Group of European Parliament in Brussels in 1993.

·Addressed as a Chief Guest in a seminar on issue of Mangla Dam during the UN Sub Commission’s proceedings in August 2003.

·Addressed as a key - note speaker in a seminar on the issue of Gilgit and Baltistan, organised by Association of British Kashmiris.

·Addressed as a keynote speaker on human rights conference in Paris in 1991.

·Addressed at CambridgeUniversity as a Chief Guest in a conference on Kashmir in 1990.

·Addressed as a keynote speaker at New Delhi conference on Kashmir, which was part of Track Two diplomacy in November 2000.

·In September 2008, addressed a Conference arranged by Interfaith International in Geneva, topic of which was:“Kashmir Issue, Terrorism and Human Rights”.

·Addressed as a speaker in a NGO Conference on Self - Determination in Geneva in August 2000.

·Addressed as a keynote speaker in a fringe meeting of Liberal Democrats at their Annual Conference in Brighton in 1995.

·Participated in World Human Rights Conference in Vienna in 1993.

·Before President Clinton's visit to India and Pakistan in 2000, lead a JKLF delegation to the State Department to discuss Kashmir dispute and situation in South Asia.

·Also had two rounds of meetings with senior State Department officials before President Musharraf’s meeting to Washington in June 2003.

·Apart from that had meetings with senior officials including Ministers of different countries, and also held many meetings with the State Department and Foreign and Commonwealth Office officials on number of occasions.

·Played important role in advancing a Kashmiri perspective on the issue of Jammu and Kashmir; and also helped Baroness Emma Nicholson with her report ‘Kashmir: present situation and future prospects’, which was adopted by the European Parliament in May 2007.

·Won first prize in an essay competition in Urdu in 1976. It was organised by High Commission of Pakistan in London, and title of the essay was 'Qaaid-e- Azam's role in Islamic History'.

·Apart from that have addressed conferences in Brussels, Geneva, Toronto, Islamabad, Delhi, and

Publications

·Got first Urdu novel ‘Fareena’ published at the age of eighteen.

·Second Urdu novel ‘Bay-Khataa’ which was about the problems of Asian youths living in UK published in 1983.

·Third Urdu book ‘Pakistan and Kashmiri struggle for independence’ published in 1990.

·Fourth Urdu book is also on Kashmiri struggle, 'Is an independent Kashmir a conspiracy?'

·Apart from that has twenty books and booklets published in English on various aspects of the Kashmiri struggle.

·Recent publications are: Kashmir dispute as I see it

·Different perspective on Kashmir

·JKLF visit to Pakistan Administered Kashmir

·Kashmir Needs Change of Heart

·If not self - determination then what?

·Emma Nicholson report- who has won?

·Struggle for independence, Jihad or proxy war (Introduction by Baroness Emma Nicholson)

·

Future publications

Following books were completed some time ago and shall be published in near future:

In Search of Freedom - My visit to Srinagar and Islamabad

Kashmir and Partition of India

A brief background

Dr Shabir Choudhry was born in a small village called Nakker Shimali (near Panjeri) in District Bhimber, Azad Kashmir. He went to UK in 1966, and like other people from the region, holds a dual nationality. He left secondary school in 1970 with no qualifications and began his life as a textile worker.

In 1975 he started part time studies and passed Matriculation from Government High School Panjeri, passed ‘O’ and ‘A’ levels from UK, and resumed full time degree course in 1981, and passed BA (Hons) in Politics and History in 1984.

He continued full time and part time jobs until he got his Mphil. He passed his PGCE (Post Graduates Certificate in Education) in 1990, and then started full time job as a Lecturer. Due to health problems he resigned from teaching in 1999. At present he is self - employed, provides private tuition, translation and interpretation and consultancy.

Through out his adult life he has actively worked for the cause of Kashmir, and even during long illness he effectively carried out his responsibilities as a leader of the JKLF, a ‘prolific writer’ and consistent campaigner of Rights Movement and peace in Jammu and Kashmir and South Asia.